Information Access Team
Shared Services Directorate
2 Marsham Street, London SW1P 4DF
Switchboard 020 7035 4848
E-mail: [email address] Website: www.homeoffice.gov.uk
Mr Peter John
[FOI #15620 email]
Date: 23 September 2009
Our Ref: 12563
Dear Mr John,
I am writing further to my correspondence of 21 August 2009, regarding your
information request of 31 July 2009. We are now in a position to provide you
with a full reply to your request.
I can confirm that the Home Office holds the information that you requested.
However I am not obliged to disclose it to you. After careful consideration we
have decided that this information is exempt from disclosure by virtue of
sections 31(1)(g) with reference to section 31(2)(b), and 36(2)(c) of the
Freedom of Information Act. This provides that information can be withheld
where disclosure would inhibit the process by which it is ascertained whether
any person is responsible for any conduct which is improper and would
prejudice the effective conduct of public affairs. Sections 31 and 36 are
qualified exemptions and require the conducting of a Public Interest Test (PIT)
to balance the considerations in favour of disclosure against those favouring
non-disclosure. A detailed PIT can be found in the annex to this response.
If you are dissatisfied with this response you may request an independent
internal review of our handling of your request by submitting your complaint
within two months to the above address quoting reference 12563.
During the independent review the department’s handling of your information
request wil be reassessed by staff who were not involved in providing you
with this response. Should you remain dissatisfied after this internal review,
you wil have a right of complaint to the Information Commissioner as
established by section 50 of the Freedom of Information Act.
I realise that you may be disappointed with this response. However we have
considered the application of exemptions with great care in this case, and the
Home Office always seeks to provide as much information as it is able to.
Yours sincerely,
John Bragaglia
Information Access Consultant
Annex
Public Interest Test
The Exemption
‘31(1) Information which is not exempt information by virtue of section 30 is
exempt information if its disclosure under this Act would, or would be likely to,
prejudice-
(g) the exercise by any public authority of its functions for any of the
purposes specified in subsection (2)
(2) The purposes referred to in subsection (1)(g) to (i) are-
(b) the purpose of ascertaining whether any person is responsible for
any conduct which is improper.’
Considerations Favouring Disclosure
There is a general consideration favouring openness and transparency in
government. It is generally accepted that government should be as
transparent as possible. Releasing information is likely to ensure the public
are better informed about issues of concern or general interest. Such an
outcome is therefore likely to result in a better quality of debate, which would
be clearly beneficial to government and therefore in the wider public interest.
Considerations Favouring Non-Disclosure
Considerations favouring disclosure must be balanced against those factors
favouring non-disclosure. These include the need to ensure that any future
investigations in to potential misconduct are not inhibited.
The public has a right to expect that government departments who hold
sensitive information do so in a secure manner. The leaking of information is a
serious matter. It directly affects the ability of government to fulfil its objectives
and undermines public confidence in all respects. When information is leaked
it is in the public interest that an investigation in to that matter is conducted,
and the culprit/s is/are identified. The release of the information requested
would have the effect of inhibiting such investigations in future. Public
authorities could be deterred from enlisting the assistance of the police and
the CPS in such investigations as a result of the fear that any published
decision not to prosecute might lead to the release of the very information the
authority was seeking to protect. Such an outcome would clearly have a
detrimental impact on the ability of public authorities to carry out investigations
and would make the job of protecting sensitive information more difficult.
For theses reasons I am satisfied that the public interest in withholding
information under this exemption outweighs the public interest in its
disclosure.
The Exemption
‘36(2) Information to which this section applies is exempt information if, in the
reasonable opinion of a qualified person, disclosure of the information under
this Act-
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the
effective conduct of public affairs.’
Considerations Favouring Disclosure
As above.
Considerations Favouring Non-Disclosure
The considerations favouring disclosure must however be balanced against
those considerations favouring non-disclosure. These include the need to
protect the integrity and the effective operation of the Department. Additional
considerations include the need to prevent the legitimisation of actions which
are damaging to the integrity of the Department and the public’s confidence in
its work.
The il icit leaking of information affects the smooth operation of the
Department and its ability to fulfil its objectives. Indeed, in his decision the
Director of Public Prosecutions, Mr Keir Starmer, QC, alludes directly to the
damage caused by leaks and this series of leaks in particular:
‘The integrity of the Home Office arrangements for handling restricted and/or
confidential information was breached. That caused damage to the proper
functioning of the Home Office, which was exacerbated by the prolonged
period of the alleged leaks, the on-going relationship between Mr Galley and
Mr Green and the sensitivity of the material to which Mr Galley had access.’
The release of this information would serve to partly legitimise the actions of
those involved in the leaking of information. The series of leaks you allude to
in your request had the potential to damage the integrity of the Department
and its ability to fulfil its core objectives. The documents that were leaked
were prepared by officials for Ministers. They contained a free and frank
appraisal of a variety of areas related to the remit of the Home Office. They
were prepared in the expectation that the information contained within them
would not be prematurely (and certainly not il egitimately) released in to the
public domain. It is vital for the proper functioning of government that
Ministers are able to seek free, frank and candid advice from officials, and that
this can be provided in an environment in which proper debate and discussion
can be had. In essence, Ministers and officials need to have the private space
to ‘think the unthinkable’. It is only through such debate that potential impacts
of policy decisions can be properly weighed up. This series of leaks adversely
affected the operation of the space in which such a debate could take place,
and thereby impeded the proper functioning of the Home Office.
The release of the six documents you have requested would have the clear
effect of legitimising the actions of those who leaked the information. Such a
release may serve to encourage those who may be thinking of leaking
information to do so. The unauthorised release of government information can
damage confidence in government and its ability to fulfil its priorities. Clearly
any action which may serve to hinder the proper functioning of government
would not be in the wider public interest.
The outcomes described above would also affect the reputation and
impartiality of the civil service. The impartiality and quality of advice to
Ministers is a hallmark of the British civil service. There are well established
procedures, laid out in the civil service code, for officials to follow if they have
a grievance or concern. The il icit leaking of information can never be
condoned and wil risk damaging the proper functioning of HMG.
For the reasons described above I am satisfied that the public interest in non-
disclosure outweighs the public interest in disclosure of this information.
